Executive Summary: Key Legal and Evidentiary Issues

• Tenants claimed their former landlord failed to occupy the premises within a reasonable time after serving a two-month notice to end tenancy for landlord's own use under s. 49(3) of the Residential Tenancy Act.

• Jurisdiction over statutory damages under s. 51(2) of the Act rests exclusively with the Director of the Residential Tenancy Branch, except where claims exceed monetary limits, in which case an application to the Supreme Court is required under s. 58(4).

• Procedural deficiencies arose because the tenants commenced their claim by Notice of Civil Claim rather than by petition, and the Director was never served with notice of the proceedings.

• The Director of the Residential Tenancy Branch sought leave to intervene on appeal, arguing the lower court should not have assumed jurisdiction without proper notice and consideration of the Director's expertise.

• Although the intervention application was deemed misconceived, the Court granted the Director leave to file a factum in the interests of efficiency and because the issues raised were of sufficient substance.

• On appeal, the tenants' claims were ultimately dismissed, and the respondents were awarded costs as the successful party after the appellants failed to demonstrate any basis for departing from the general costs rule.

The tenancy dispute and its origins

Gabriela Sefcikova and Kamil Sefcik were tenants of a residential property in British Columbia. Sandra Bayliss, one of the landlords, engaged Orca Realty Inc. to manage the property. In November 2021, Ms. Bayliss signed a two-month notice to end the tenancy, which Orca Realty served on the tenants. The stated ground for termination was that the landlord required the premises for her own use, a process governed by s. 49(3) of the Residential Tenancy Act, S.B.C. 2002, c. 78. The tenants contended that the landlord did not occupy the premises within a reasonable time after serving the notice, thereby triggering statutory damages under s. 51(2) of the Act, which requires the landlord to pay the tenant 12 times the monthly rent that was payable under the tenancy agreement.

The statutory framework and jurisdictional question

Claims arising under s. 51(2) of the Residential Tenancy Act are generally within the exclusive jurisdiction of the Director of the Residential Tenancy Branch, as established by s. 58(1) of the Act. However, the Director is not permitted to resolve claims that exceed monetary limits set out in s. 58(2). For disputes exceeding those limits, s. 58(4) provides for an application to be made to the Supreme Court, which may either hear the dispute or refer it to the Director for determination. Importantly, such an application is an originating application and should be commenced by petition, as discussed in Gates v. Sahota, 2018 BCCA 375.

Procedural irregularities in the lower court

The tenants amalgamated their claim for statutory damages under s. 51(2) with a claim for other compensation that exceeded the small claims limit. Rather than bringing the matter by petition as required under s. 58(4), they commenced their claim by Notice of Civil Claim. The Director of the Residential Tenancy Branch was not given notice of the claim. The judge hearing the claim considered that she had jurisdiction to hear it but was not directed to the requirement that the matter be resolved on an application (i.e. a petition), nor did she comment on the fact that the Director had not been served with notice. The judge dismissed the tenants' claim, and they appealed.

The Director's application to intervene

Following the appeal filing, the Director of the Residential Tenancy Branch applied for leave to intervene in the appeal (2024 BCCA 328). The Director wished to argue that the procedures followed were improper, that he ought to have been given notice, and that expertise and administrative consistency ought to have been factors considered by the court in deciding whether to hear the matter or refer it to the Director. Justice Groberman, hearing the application in chambers on September 12, 2024, found the application to be misconceived. He noted that the role of an intervener is to present legal arguments on issues raised by the parties on an appeal, not to raise entirely new issues that the parties have not chosen to raise. What the Director really wished to do was appeal the decision made by the judge below, which properly required him to bring his own appeal. However, because the Director was not named as a party to the proceedings below, he may have faced challenges in commencing his own appeal and likely would have had to apply for an extension of time to appeal, because he did not have timely notice of the judge's order.

Practical resolution of the intervention issue

Recognizing that dismissing the application and sending the Director away to apply for an extension of time to appeal would be very inefficient, and might result in a multiplicity of proceedings, Justice Groberman granted the Director leave to file an eight-page factum, to be styled "Intervener's Factum," to be filed and served by October 11, 2024. The appellant and respondent, should they choose to do so, were each given leave to file a six-page factum in response within three weeks of receipt of the Director's factum. The Court left it to the panel hearing the appeal to decide whether to consider the Director's arguments and whether any orders were necessary to regularize the appeal proceedings, including whether the Director should be made an appellant rather than an intervener.

The appeal outcome and the costs decision

The appeal was heard on March 26, 2025, and dismissed in reasons indexed as 2025 BCCA 174. In supplementary reasons dated February 6, 2026 (2026 BCCA 46), the panel of Justices Willcock, Donegan, and Riley addressed costs of the appeal. The appellants argued that the respondents, though successful on the appeal, should be disentitled to costs based on the manner in which the litigation was conducted, emphasizing that they are self-represented litigants who, they say, have made good faith efforts to comply with the Rules, and to honour filing deadlines. The Court did not find these submissions convincing, noting that the allegations of misconduct relate primarily, if not entirely, to the proceedings in the trial court, and are not supported by the record or the findings of the judge in the court below. Nothing that occurred in the course of the appeal proceedings would disentitle the respondents to costs. Accordingly, under the general rule set out in s. 44 of the Court of Appeal Act, S.B.C. 2021, c. 6, the respondents, Orca Realty Inc. and Ms. Bayliss, as the successful party, are entitled to costs. No specific monetary amount for costs was determined in these supplementary reasons.